Case No.:

(HC-CS-695-1956).

Court:

The High Court

Issue No.:

1960

Principles

·  Negligence—Improperly guarded ditch in highway—Standard of care—Contributory negligence—Apportionment Damages—Quantum of damages—Fatal Accidents Acts—Wife and daughter living apart from and not dependent on deceased—Son living apart from deceased,but deceased financing education Damages—Quantum of damages—Law Reform (Miscellaneous Provisions) Act, 1934. s. 1 (i)—Relation to Fatal Accidents Acts—Loss of expectation of happiness—Pain and suffering

The deceased, cycling home after dark, fell into a ditch which extended into the middle of the road and which had been dug by the first defendants on behalf of the Khartoum Municipal Council. He was seriously injured and died five days later. On one side the ditch was bordered by a mound of earth on ‘the other by a wooden barricade where a hurricane lamp was hung, but th did not cover its whole length, so that there was in the road an unguan opening into which the deceased fell. The ditch was about 6o—70 yards from the house of the deceased and had been in existence for three days before accident.
The deceased was a man of quiet tastes, between 6o-65 years of he had recently retired from business, was in good health and comparativ wealthy. He was separated from his wife and divorce proceedings had b started. He was survived by (i) his wife who was living apart from him supporting herself; (ii) his daughter, who was living with her mother and earn her living; and (iii) his son, aged fourteen, who ‘as living with his mother, whose schooling was financed by the deceased.
In an action brought by the wife (as administratrix) on behalf of the esi and the two children,
Held: (i) The defendants were negligent in failing to provide adequate warn of the existence of the danger to the users of the highway.
(ii) The deceased was presumed to have known of the existence of the di as it was so near his house and in the circumstances his failure to take care for own safety amounted to 70 per cent. Contributory negligence.
(iii) The doctrine of res ipsd loquitur was not applicable to the present c
(iv) Where the dependants claiming under the Fatal Accidents Acts are the same as those who will benefit from any award under the Law Reform (Miscel laneous Provisions) Act, an award under one Act must be taken into considerat in the assessment of damages against the other Act.
(v) In the circumstances the wife and daughter had suffered no financial I from the death of the deceased, and so could not recover under the F Accidents Acts. But the son could have expected £S.2oo per annum until the age of eighteen and was entitled to £S.8oo.
(vi) Taking into account all the circumstances of the deceased’s life, and Ic Sudanese cQnditions and values, and applying the principles laid down in Benh v. Gambling, damages for loss of expectation of happiness under the Law Refc (Miscellaneous Provisions) Act were assessed at £S.2, 400. Damages for pain suffering were assessed at £S.20 and medical fees and funeral expenses £S.31.440m/ms.
(vii) The above awards being reduced by ‘ per cent., the total award agai the defendãnt4 amounted to £S.Th5.442m/ms.
Khartoum Municipal Council v. Cotran (1958) S.L.J.R. 85 followed; Davie Powell Duifryn Collieries [1942] A.C. 601 followed; dictum of Lord Simon in Nance v. British Columbia Electric Railway [1951] A.C. 601, at 611 approved. Benham v. Gambling [1941] A.C.157 followed

Judgment

(HIGH COURT)

(Order accordingly)

ADMINISTRATRIX OF COSTAS ZIS v. GERMAN AND SWISS ENGINEERING AND CONTRACTING COMPANY AND

PHOENIX ASSURANCE COMPANY

(HC-CS-695-1956).

Action

Advocates: Mubarak Zarroug……. for plaintiff

                  E.M. Kronfli………….. for defendants

April 24, 1960. Tewfik Cotran Acting J.: —This suit is lodged by administratrix of the estate of the late Mr. Costas G. Zis against the Gem and Swiss Engineering and Contracting Co., Ltd., to recover damages his death when he fell into a ditch created by them, in Mohamed Ali Avenue when engaged in excavations for the Khartoum sewage system.

In this suit i nave not heard any evidence or seen any witnesses. Yet it has fallen to my lot to write the judgment. This is most unfortunate because conflict in the evidence between the two parties could be more easily resolved when the judge sees and hears the witnesses. My judgment must therefore, perforce, be based almost exclusively on the evidence as recorded.

On the night of March 4, 1956, the deceased was found with his bicycle inside a deep ditch, which was dug by the defendants at the junction of Mohamed Ali Avenue (as it was then called—now it is El Mak Nimr Avenue) and Zubeir Pasha Street. No one saw the deceased when he fell. He was seriously injured and died five days later. Though the deceased was semi-conscious for a day or two after the accident he did not appear to have described to anyone how he fell. There is evidence that the deceased was on his way home from the Greek club. His house is in Zubeir Pasha Street. The Greek club is in Barlaman Avenue, so it is safe to conclude that deceased was cycling from north to south up Mohamed Ali Avenue and fell into the ditch as he turned left to go into Zubeir Pasha Street to his house which was about 6o—7o yards away.

The defendants had dug the ditch on the left side (east side) of Mohamed Au Avenue. The ditch was about 4 metres deep. It extended up to the middle o Zubeir Pasha Street. There were then 3 metres of road and then the ditch continued. This gap of 3 metres served as an access road to Zubeir Pasha Street. The sand and earth, which were removed from the ditch, lay on both its sides. Since the earth was quite substantial and reached a height of 2 or 3 feet at both sides, it is stated that this pile of earth on both sides of the ditch served as a warning to the pedestrians. The ditch was about a metre wide. It has been stated that there was a 3-metre gap in the ditch in Zubeir Pasha Street. At each, edge it is stated that there was a wooden barricade where a red hurricane lamp was hung. The plain v witnesses state that the wooden barricade was not placed at the edge of the ditch but further inside and did not form any barrier and left part of the ditch which protruded into Zubeir Pasha Street open; and that not enough light was shedding upon it, and the deceased fell with his bicycle into this open part. The defendants say that there were two wooden barricades at each end of the ditch on which were hung two red hurricane lamps. Advocate Mubarak for the plaintiff replies to this in the following words: “If the trench was so protected as described by the defendants it would have been impossible for a man on foot to fall, let alone a man on the top of a bicycle. The fact that they both fell, inevitably leads to the conclusion that there was left a gap sufficiently wide to let through a full grown person and a bicycle.” For reasons, which will be presently stated, I find as a matter of fact that there was an opening in the ditch through which the deceased fell. It has to be repeated that no one saw him when he fell, and there are some variations in the evidence of the witnesses and at times conflict but I would have been terribly; urprised if there had not been because the witnesses were giving evidence three years after the occurrence of the accident. There were, however, several witnesses who came shortly to the scene, including a police officer who made a sketch. I accept the evidence of the police officer on the state of the ditch on the night of the accident. The reasofis are simple: the sketch that he drew was almost contemporaneous with the accident; and I do not think he could be accused of favouring this party or the other. From this I conclude that the wooden barricade was one metre inside the trench; that a red hurricane lamp was hung on the plank of wood on one side of the embankment and another placed on top of the pile of earth removed from the ditch on the other side of the embankment.

Now there is no doubt that the defendants are empowered to do the excavations in this street for the purpose of laying a sewage system, by a sort of contract with the Khartoum Municipality; and there is no doubt that once the ditch is dug in the middle of the road a duty to take care is owed by them to the users of the highway. But the duty is a duty to give an. adequate warning to the users of the highway. The defendants cannot insure that no accident can happen. In the words of the Court of Appeal in Khartoum Municipal Council v. Michel Cotran (1958) S.L.J.R. at p. 103, “The test is based on the practical common experience of everyday life, and takes into consideration human wisdom, human knowledge and human frailties. The defendant according to this test is not placed in the position of an insurer to be responsible for every injury, every wrong that happens to occur. If this be the case life will be practically intolerable.” In the case before us the defendants have placed on both sides of the ditch the sand or earth that they have excavated from within. This reached a height of some 2 or 3 feet. Whenever another street was crossed an embankment was made between the two sides of the ditch. The defendants have placed red lights on each end. The question that has now to be asked is whether, in putting the lamp on the barricade away from the edge of the ditch, and leaving a part of the ditch that protrudes into the mad (Zubeir Pasha Street) open or unfenced they have been negligent? After some hesitation I have concluded that defendants, though they have obviously taken some precautions, have not taken adequate precautions. They have put red lamps on the embankment but surely to put one of the lamps on the barricade one metre away from the edge of the ditch is negligent because a person would think that the whole gap between the lamps was free of danger. But having said this much against the defendants one cannot help feeling that the plaintiff himself was also negligent. The ditch had been do? Some three days before. The deceased’s house is only some sixty yard away and he must have passed and repassed through this gap at least half a dozen times in those days. Besides, although there was no light shedding on the ditch there were some municipality lights, one eight metres away and one about twenty. In addition it should not be forgotten that two red hurricane lamps were on each side of the ditch, though unhappily for the deceased—not at the edge. In these circum stances the court has come to the conclusion that the deceased himself contributed to his injury by his lack of care in looking after himself. In Nance v. British Columbia Electric Railway [1951] A.C. 601at 611, Lord Simon said:

". . . all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by his want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that where a man is part author of his own injury he cannot call on the other party to compensate him in full.”

The ditch in Mohamed Ali Avenue cannot be said to be a trap of which the plaintiff was completely unaware. A reasonable man would have acted in a more reasonable manner than did the deceased. For example, the deceased could have dismounted from his bicycle and examined the gap clearance on foot. In the circumstances of the case and knowing the existence of the drain the deceased did not act reasonably and contributed to his own injury.

It will be convenient here to deal with a point raised by learned counsel for the plaintiff. In his submissions Advocate Zarroug said that the rule res ipsa loquitur applies to the circumstances of this case. In my opinion the fall of the deceased into this ditch is not covered by the res ipsa loquitur rule, which is really a rule of evidence and not of substantive law. It merely shifts the burden of proof from the plaintiff to the defendants. and applies to cases where the circumstances are such that there is a presumption that the defendants or their servants have been so negligent that it will not be necessary for the plaintiff to prove (as he normally must) a breach on the part of the defendants of their duty to take care.

The next question that the court must discuss is the share of respon sibility for this accident. This is not an easy task by any means. In Khartoum Municipal Council v. Cotran (1958) S.L.J.R. the defendants dug a ditch in 47th Avenue. The plaintiff fell into the ditch and sustained some injury to his leg. The Court of Appeal said that:

“…the drain’is in 47th Avenue, which is no a lighted Avenue, and is as already mentioned, about 2 metres deep. 2 1/4—2 1/2 metres wide, and it is adjacent to the highway. The court below found as a fact that the drain had no raised edges and no pillars were made to give a clue of its existence and even the witnesses who gave evidence in favour of the Municipality and testified to the existence of the pillars; stated that they were cement colour. These established facts tell us in no ambiguous or uncertain language that the Municipality did nothing to bring to the notice of the public the existence of the drain. All that the Municipality has done was to dig a dangerous drain and then to fold its arms and stand away motionless, in semi-sleep, and without a modicum of interest in the safety of the citizens. Indeed the Municipality proved to have neither the will nor the intention to do its duty as regards the safety of the public.”

In spite of these findings of fact the Court of Appeal thought the plaintiff was himself fifty per cent, negligent. Although it was the first time in his life that the plaintiff had gone to that street, it was held that plaintiff should have investigated the geography of the avenue, and because the cars on that road were parked straight and not diagonally, he should have kept a general lookout or a “glance ahead” in which event he would or should have discovered the ditch. In the case before me on the other hand there is no question of the deceased not knowing of the existence of the ditch; he lives sixty yards away and the ditch had been there for three days. There were also two lights. The basic elements of prudence required the deceased to be extremely careful. If he had been he would surely have discovered the dangerous protruding part of the ditch and avoided it. In all the circumstances I think that the deceased must bear the major proportion of the responsibility for the accident, which I assess at 70 per cent.

It is not clear if the plaintiff is claiming damages under the Fatal Accidents Acts or the Law Reform (Miscellaneous Provisions) Act, 934, or both. By the Law Reform (Miscellaneous Provisions) Act, 1934, “on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.” From this it follows that the deceased’s personal representatives are entitled, for the benefit of the estate, to sue the defendants for damages for their negligence in leaving part of the ditch unprotected. The deceased is entitled to recover (a) for loss of expectation of life; (b) for his pain and suffering. It falls upon this court to assess those damages. But before I proceed to assess those damages under the above Act it is necessary to discuss the position under the Fatal Accidents Act. I say this because Clause of the Statement of claim specifically states: ‘ this action is brought on behalf of the following persons who have suffered by the death: Alice Zis, the widow of the deceased; Rita Zis, his daughter; and George Zis, his son.” In the same paragraph damages for £S.5,000 are asked for. I am proposing to treat this claim as a claim under both of those Acts. In this case, since the estate of the deceased had no liability and those dependants that are entitled to sue under the Fatal Accidents Acts are the same as those that will benefit from any award made under the Law Reform (Miscellaneous Provisions) Act the damages awarded will not make any substantial difference since an award under one Act will have to be taken into consideration in assessing damages against the other Act (Davies v. Powell Duffryn Collieries [1942] A.C. 601.

Under the Fatal Accidents Acts only close relatives of the deceased can sue (wife, husband, parent, child, grandparent, grandchild, step-parent, step-child) and the damages recoverable as Pollock C.B. had said in Franklin v. S. E. Railway (1858) (3H. & N. at pp. 213, 214) must be calculated “in reference to a reasonable expectation of pecuniary benefit as of right or otherwise, from the continuance of life,” and it follows from this that relations who suffered nominal damages, or none at all, can recover nothing. (Duckworth v. Johnson (1859) 28 L.J.Ex. 257.) The damages awardable under these Acts do not include damages for solatium or mental anguish for the loss of the deceased.

What then, in the case before us, did the wife, the daughter, and the son, expect from the deceased by way of pecuniary benefit in the event of his not being killed? The wife and her husband (the deceased) had been on bad terms for about a couple of years. She had left the matrimoni home and had gone to live elsewhere. He had not been supporting her as she had her own means of support. Divorce proceedings were commenced both in this country and in Greece, and the evidence suggests that there were no reasonable prospects of reconciliation. In these circumstances as far as the wife is concerned it is perfectly unreal to speak of “a reasonable expectation of pecuniary benefit from the continuance” of her husband’s life. On the contrary, though it may be unkind to say it, she seems to have benefited more from his death than from the continuance of his life. The evidence is that the deceased had sold his business in the Sudan and was preparing to go to settle finally in Greece, and if he had not died intestate, she would not have got a millieme out of him. I do not therefore think that the wife is entitled to anything under this head. Indeed, the wife, in cross-examination, stated that she did not want any damages for herself, but only for her children. The daughter of the deceased, who was over twenty-one years of age, is not in a much better position. The deceased had educated his daughter well. She is a graduate of the University of Khartoum. He has further settled on her a sum ‘of £S.2,500. She is working as a secretary and earns £S.25 per month. She had also left her father’s house and had gone to live with her mother. The deceased was not giving her any money. All that he did was to give her, every now and then, a present such as a dress. In the circumstances I do not think that she could hope to get any pecuniary benefit in the event of his continuance of life. She is therefore entitled to nothing under the Fatal Accident Acts. The deceased also had a young son who was fourteen at the time of his death. The son had also left his father’s house and gone to live with his mother and sister, but there is this difference between the mother and daughter on the one hand and the son on the other: in the case of the son the father (the deceased) was paying for his son’s education. In the circumstances I am of opinion that the son had some expectation of benefit from the continuance of the life of the father. I assess this amount at £S.8oo being £S.2oo a year until the age of eighteen when the son should he expected to face life on his own. We now go back to assess the damages under the Law Reform (Miscellaneous Provisions) Act. The deceased’s estate can recover for the loss of expectation of the deceased’s life, and for the pain and mental suffering. The House of Lords, in Benham v. Gambling [1941] A.C. 157 has laid down certain rules with regard to the mode of assessing in terms of money a “reasonable expectation of life.” These are: 1. That the thing to be valued is not the prospect of length of days but of a predominantly happy life. Therefore the actuarial test is not of much value, though it may be relevant, e.g., in cases of extreme old age. 2. The capacity of the deceased to appreciate that his further life would bring him happiness is irrelevant; the test is objective, not subjective. 3. Damages are in respect of loss of life, not of loss of future pecuniary prospects.

4.Assessment is so difficult that very moderate damages should be given. . Wealth and social status must be ignored for happiness does not depend on them. What are the facts? The deceased was a man of between sixty and sixty-five years of age. He had struggled in his life and made a fortune estimated by the Official Administrator at some £S.36,000 and by Advocate Zarroug at £S.60,000. When he was killed in this accident he had already sold his business in Khartoum and was about to go to settle in Greece. There is no evidence that he was or had been in bad health. For the past two years he had been living alone in his house in Khartoum, the members of his family who now sue for damages for his death had all left him and were living elsewhere. His interests in life seem to have been a game of “Tawia” in the Greek Club or a game of cards. In spite of his relative wealth he did not appear to have been generous either to himself or to others. He was using no more than a bicycle for his transport. He was not earning.any money at the time of his death, because as I have mentioned previously, he had sold his business and was about to retire in Greece away from his family and friends. He was not a young man in the prime of life with all the future before him, and though he was not of an extreme old age that death was round the corner, he had nevertheless reached the evening of his life. In all these circumstances I would not regard this man as a man who expected an extremely predominantly happy life in his old age. But every man, however unhappy in his domestic life, is entitled to quiet if uneventful retirement. My impression is that this man would have retired to a Greek village, probably his birthplace, and could expect some peace of mind. What damages to award him despite the facts just stated, and despite the rules in Benham v. Gambling is still very difficult. One thing is certain, viz., that whilst cases of the courts of England are always taken into account as authoritative in the Sudan courts, the assessment of the damages must necessarily be assessed under purely local conditions and values. In the Khartoum Municipal Council v. Cotran (p. 113) the Court of Appeal said:

“Counsel for plaintiff brought to our notice a host of English cases with a view to guide us in assessing the quantum of damages. Let us make it clear from the outset that we refuse to be guided (or do we say misguided?) by English or any other foreign cases in this respect, i.e., the actual amount of money to be awarded. The question of quantum of damages is a particularly local concern touching closely on the local conditions and circumstances of each individual country- depending on the standard of living, the wealth of the nation, the economic realities of the country and its social philosophy. We will be living in a world of dreams, in a fool’s paradise, if we attempt to ignore the existing differences in conditions of life between our country and the United Kingdom . . .. In attempting to assess the quantum of damages we must confine ourselves to precedents in our own courts.”

Unfortunately the decisions of the Sudan courts are few. Until one or two years ago there was no regular system of law reporting. I do, however, from memory, remember a few cases. One of them is an award of £S.750 for the death by electrocution of a boy of twelve against the then Sudan Light and Power Company for their negligepce in failing to disconnect a live wire’when it fell to the ground after a storm (Mr. Justice Soni). Taking all these circumstances into consideration I assess the damages for loss of expectation of life at £S.2, 400.

The deceased is also entitled to damages for the pain and suffering which he had. These, however, must be limited to the five days, which he survived. It must be remembered that in the last days he was unconscious, and in the first two days he was only semi-conscious. I do not believe the witness who said the deceased was laughing and joking. If this was the case then he would surely have described to his friends how he tells. Advocate Zarroug cited many cases of damages awarded under this head, but i most of these cases death did not ensue, or ensued after a long time. In those cases the bulk of damages must be for the pain and suffering past and future and for loss of amenities, but when death occurs no damages are awardable for future pain and disability and loss of amenities. These must be merg with the damages awarded under “loss of expectation of life.” I do ii think that I can award more than £S.20 for pain and suffering for these damages must be limited to the few days which the deceased survjv after his accident. To this will be added the medical fees incurred as w as the funeral expenses amounting to £S.31.440m/ms.

The total sum which I award is therefore £S.2, 451.440m/ms This w be reduced by 70 per cent, which is the Ueceased’s contribution of t] blame for the accident, making a total of £S.735.432m/ms. Since damag are not recoverable twice over, and since the son is entitled to damag under the Fatal Accidents Act as explained there will be a declaration th the sum of £S.735.432 awarded be divided as follows between tF beneficiaries:

Son£                S.435.432m/ms

Daughter  £ S. 150.000m/ms

Wife       £S.150.000m/ms

Plus costs.

                                                                                       (order accordingly)